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Chile’s Native Communities Find Ally in Supreme Court

by Marianela Jarroud (santiago)

Friday, May 11, 2012

Inter Press Service

Indigenous groups in Chile celebrated a recent court ruling that represented the latest victory in the struggle for respect for their right to be previously consulted about major projects which directly affect their communities.

On Apr. 27, the Supreme Court upheld an earlier decision by an appeals court, which had cancelled the environmental permit granted to the Canadian mining giant Goldcorp for its El Morro gold and copper mine in the northern Chilean region of Atacama.

The company reported that it had brought all work at El Morro to a halt, in line with the verdict handed down by the Court, which ordered it to consult with the small Diaguita de los Huascoaltinos indigenous agricultural community before carrying out any activity in their territory.

Goldcorp owns 70 percent of the El Morro open pit mine, a 3.9-billion-dollar 14-year project that is expected to produce 2,200 tons of copper concentrate per day in the Huasco Valley.

If it goes ahead, the project will affect 2,500 hectares stretching from the Andes mountains to the Pacific coast, including large swaths of land belonging to the Diaguita native community.

The Court also ruled that the company must carry out a more thorough environmental impact assessment, which must also take into account the resettlement of local communities and effects on the traditional way of life of the Diaguita Indians.

In addition, the verdict stated that the company violated International Labour Organisation (ILO) Convention 169 Concerning Indigenous and Tribal Peoples, Chile’s Indigenous Law, and the United Nations Covenant on Civil and Political Rights.

'The sentence in the El Morro case reflects legal precedents in Chile guaranteeing respect for the right to prior consultation of indigenous people with regard to measures that directly affect them, according to the ILO convention,' Consuelo Labra, a lawyer with the Citizen’s Observatory, the organisation that sponsored the legal action, told IPS.

According to ILO Convention 169, which establishes the right of native peoples to be previously consulted on matters affecting their territories and way of life, such as mining, oil or infrastructure projects, the Chilean state must carry out the consultation. However, the process has not yet been adequately regulated in this South American country.

'In late 2009, when the government of Michelle Bachelet (2006-2010) was coming to an end, decree-law 124 established a temporary regulation. But it ended up standing in the way of the implementation of consultation processes,' Hernando Silva, the head of the Citizen’s Observatory legal area, told IPS.

The expert added that in this respect, Chile lags far behind other mineral-rich countries in the region like Peru and Bolivia, which have adopted their own national laws on prior consultation.

'We need neither the mining company nor the government for our own development,' said Sergio Campusano, president of the Diaguita de los Huascoaltinos agricultural community. 'As a community, we are involved in several initiatives, such as the development of a private protected natural area, which will be the largest indigenous nature reserve in northern Chile.'

Campusano said the mining project not only affects the environment, but also the native community’s own development plans.

'In this initiative, our slogan is that we are ‘guardians of nature’, because that is what we are — it is in our nature. Mining projects do not fit here,' he said.

'We aren’t people who live around a mining project; the mine came and installed itself at the very centre of our ancestral territory,' he said.

The Supreme Court ruling in the El Morro case was not unprecedented.

For the past three years, indigenous communities around the country have filed legal action demanding compliance with ILO Convention 169.

The first case was won by a Mapuche community in the southern city of Lanco, who were not consulted with respect to the construction of a garbage dump near their homes.

Another victory involved a controversial wind farm on Chiloé Island in southern Chile, which the Supreme Court halted due to the company’s failure to properly consult with local Mapuche communities.

'The El Morro case is the result of all of these processes,' said Silva.

After the ruling was handed down, Goldcorp said it would meet with the Environmental Evaluation Service to see what steps to take now.

But experts say the opposition of indigenous communities and the requirement that consultation processes be carried out make it unlikely that the El Morro mining project will continue in the short to medium term.